One silver lining of the pandemic-ridden 2020 has been the much hoped-for vaccine for COVID-19. The UK’s Medicines and Healthcare products Regulatory Agency (MHRA) has approved three vaccines developed by Pfizer/BioNTech, Oxford/AstraZeneca and Moderna. The current priority for receiving the vaccine set by the Joint Committee on Vaccination and Immunisation (JCVI) is:
- All residents in a care home for older adults and their carers.
- All those 80 years of age and over and frontline health and social care workers.
- All those 75 years of age and over.
- All those 70 years of age and over and clinically extremely vulnerable individuals.
It may be some time before those outside of this group have the chance to receive the vaccine, depending on how quickly the roll-out programme can be implemented. The Health Secretary stated in a recent BBC interview that every adult will be offered a COVID-19 vaccine by autumn. Of course, this promise will depend not only on the speed of the roll-out, but also on the supply of the approved vaccines.
Vaccine and employers
Employers may wish to start thinking about the vaccine in the context of workplace and employee well-being. ACAS has taken the view that employers are not able to require employees to take the vaccine and should listen to concerns if employees refuse to take it. If the reasons for refusing the vaccine are unreasonable, then employers may be able to take disciplinary action. The relevant factors are stated to be:
- Whether there is a vaccine policy in place.
- Whether the vaccine is necessary to do their job.
- Whether an employee’s reason for not wanting the vaccine might be protected under the Equality Act 2010.
This blog will focus on the third aspect, more specifically whether a reason for refusing the vaccine can be protected on religion or belief grounds under the Equality Act 2010.
Religion or belief grounds
There may be medical reasons for refusing to take the vaccine, for example Public Health England advises that pregnant women or those who plan a pregnancy within three months of the first dose should not take the vaccine. There are also those who are advised not to take the vaccine because of a medical condition (such as an allergy).
But some refusals are driven by religion or belief grounds. UK polls show that the proportion of British people willing to take the vaccine stands at 77%. This is high compared to France, where only 40% of people say they will get the vaccine. France is home to some of the more vocal anti-vaxxer movements, which have gained more prominence during the current pandemic. A consensus is emerging that the anti-vaxxer movement will negatively impact how quickly countries can fight back against the pandemic, made more acute in the light of the new strain which spreads more quickly than before.
Can the anti-vaxxer belief be protected under the Equality Act 2010? The guidance in Grainger v Nicholson [2010] IRLR 4, which concerns a philosophical belief about climate change, stated the position as:
- The belief held must be genuinely held.
- It must be a belief, not an opinion or viewpoint based on the present state of information available.
- It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- It must attain a certain level of cogency, seriousness, cohesion and importance.
- It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
Going back to the French example, according to the Institute for Strategic Dialogue (ISD), online disinformation about COVID-19 in France primarily takes the form of conspiracy theories. To the extent that the anti-vaxxer movement is rooted in these conspiracy theories, and based on analogous case law, it is unlikely that such a belief would be protected on “belief” grounds. Consider the case of Farrell v South Yorkshire Police Authority ET/2903805/10. The employment tribunal held that an employee’s beliefs that the 9/11 and 7/7 attacks were “false flag operations” authorised by the US and UK governments, and that the media is controlled by a global elite seeking a new world order, were not philosophical beliefs for discrimination purposes. The tribunal held that the employee’s beliefs were honestly held, related to weighty and substantial aspects of human life, and were compatible with human dignity, but they did not meet “even a bare minimum standard of coherence and cohesion”. The tribunal labelled the beliefs “absurd”.
There are other reasons for refusal which may gain more traction in the employment tribunal. Following the recent case of Casamitjana v League Against Cruel Sports ET/3331129/18, which held that ethical veganism was a protected philosophical belief, vegans might object to vaccines that contain animal-based ingredients or have been tested on animals. According to the NHS, the approved vaccines do not contain any animal products or egg. However, it is an unavoidable reality that all vaccines currently are tested on animals and therefore it is impossible to have a vaccine that has been created without animal use. The definition of veganism (as written on The Vegan Society website) recognises that it is not always possible or practicable to avoid animal use. For a tribunal to take the view that refusal based on one’s veganism belief would not be such a big leap from the current position.
Members of certain faiths may also object to being vaccinated on religious grounds on the basis that animal-related ingredients or embryonic tissue go into the vaccine, or because of how the vaccine has been tested or developed. However, according to the current NHS website on COVID-19 vaccines: “The approved COVID-19 vaccines do not contain any animal products or egg”.
Proportionate means of achieving the legitimate aim?
It would be extremely difficult for employers to require employees to take the vaccine (the reasons range from the Convention Rights concerns such as Article 8, discrimination risks as well as those relating to constructive dismissal). Putting this to one side, could such a requirement be objectively justified in relation to an indirect discrimination claim? An employer will need to show that there is a legitimate aim (a real business need) and that the provision, criterion or practice (PCP) is a proportionate means of achieving that aim (that is, it is reasonably necessary in order to achieve that aim, and there are no less discriminatory means available).
Given the deadly nature of the pandemic and the urgent public health need to protect members of the public, including employees, a legitimate aim of protecting the health and safety of staff in the workplace could be established without difficulty. But employers face a potentially difficult hurdle on proportionality that other COVID-secure measures in the workplace, not to mention testing, provide a more proportionate and less discriminatory means of achieving that aim.
